Article 3 "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."
1. There is no reference in the Canadian Immigration Act to the Convention Against Torture (CAT) and the Article 3 non-refoulement provision.
2. The Immigration Act contains no provision prohibiting removal of a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.
3. The refugee determination system offers protection to many people who would be at risk of torture if removed. However, not everyone at risk is able to enter the refugee determination system: a person against whom a removal order has been made cannot make a refugee claim (S. 44 (1)). In addition, there are eligibility criteria that must be met (S. 46.01). For example, a person who has been recognized as a Convention refugee by another country, a person who has been refused refugee status in Canada and has been outside the country for less than 90 days and a person who meets certain criminality or security criteria will not be able to have their claim to refugee status determined. Among those who do receive a refugee status determination, some who are at risk of torture do not meet the Convention Refugee definition.
4. For some people who do not meet the Convention Refugee definition, the Post-Determination Refugee Claimant in Canada Class (PDRCC) may provide a recourse offering protection from removal to torture. However, people at risk of torture are not eligible to apply if they never made a refugee claim, if they were found ineligible to make a refugee claim, if they have withdrawn their refugee claim, if their refugee claim has been declared abandoned, if their refugee claim was found to have "no credible basis", if they meet certain criminality and security definitions, or if they fail to apply within 15 days of a negative refugee decision. For those who are eligible to apply, the complex definition is not consistent with CAT article 3, requiring, for example, that the risk apply in every part of the country of deportation. Decisions are made based on paper submissions, without any oral hearing. Furthermore PDRCC assessments are made by fairly junior immigration officers, rather than an independent tribunal. Lawyers and NGOs have frequently expressed concern that decisions fail to recognize concerns about torture, Post-Traumatic Stress Disorder (PTSD) and retraumatization. Officers making PDRCC assessments have been offered training on PTSD and have been issued draft guidelines on PTSD. However, the Canadian Council for Refugees finds the draft guidelines seriously inadequate and has provided comments to this effect. To the knowledge of the Canadian Council for Refugees, the draft guidelines have never been amended or finalized.
5. Those not eligible for a PDRCC review (or not accepted under the class) can make arguments about risk of torture through an application for humanitarian and compassionate consideration (H&C). However, there is an application fee of $500 per adult and $100 per minor, and deportation is not stayed pending consideration of such an application. In fact, on occasion people granted humanitarian consideration have still been removed, due to lack of communication between different units within the Immigration Department.
6. In 1998 the government introduced Bill C-40, a new extradition act. The Canadian Council for Refugees expressed its concerns that the bill did not contain adequate protections to prevent the extradition of persons to persecution or torture. Although S. 44. (1) provides for refusals to make a surrender order if the surrender would be unjust or oppressive or the person would be discriminated against or persecuted, there is no reference in the legislation to the CAT Article 3 obligation not to extradite a person to torture. Furthermore, the legislation denies persons facing extradition the right to a fair hearing, before an independent decision-maker, on risks feared, including the risk of torture. Nevertheless, the bill passed into law in June 1999 without any amendment to these provisions.
7. In April 2000, the Minister of Citizenship and Immigration tabled Bill C-31. Unlike the current Immigration Act, which it was intended to replace, Bill C-31 made specific reference to the Convention Against Torture. Section 90(2)(a) of the bill provided for the protection of people who are at risk of torture as defined in Article 1 of the Convention Against Torture. However, the bill did not fully respect Article 3 of the Convention. Under the bill, the prohibition against sending a person to torture would not apply to people who are inadmissible on grounds of serious criminality or security (S. 108(2)). The UNHCR in its comments on Bill C-31 (July 11, 2000) expressed its concern that S. 108 of Bill C-31 "does not respect the non-derogable nature of the prohibition against the return of an individual to a situation where there are substantial grounds for believing that he or she would be in danger of torture" (para. 96).
8. While this bill died with the dissolution of Parliament in October 2000, the Canadian Council for Refugees is concerned that the bill signals the government of Canada's intention to continue to allow for the removal of persons to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture, in violation of Canada's obligations under the Convention Against Torture.The CCR is concerned that there has been no acceptance by the government of Canada of the recommendation made in April 1999 by the UN Human Rights Committee, in its Concluding observations following examination of Canada's compliance with the International Covenant on Civil and Political Rights:The committee is concerned that Canada takes the position that compelling security interests may be invoked to justify the removal of aliens to countries where they may face a substantial risk of torture or cruel, inhuman or degrading treatment. The Committee ... recommends that Canada revise this policy in order to ... meet its obligation never to expel, extradite, deport or otherwise remove a person to a place where treatment or punishment that is contrary to article 7 is a substantial risk. (Para. 13)
9. In 1998 the House of Commons Standing Committee on Citizenship and Immigration made a study of detention and removals, and heard concerns from some witnesses, including the Canadian Council for Refugees, that Canada in some cases removed persons despite a formal request from an international body charged with applying an international human rights treaty. In its report, Immigration Detention and Removal, June 1998, the Committee stated, that "[w]e are unwilling to recommend that deportation should never occur in these cases, because there could be extreme situations that would shock Canadians should the government not remove an individual." (page 19) The committee went on to recommend that "Citizenship and Immigration Canada should exercise great caution in deporting an individual in the face of a formal request not to do so from an international body charged with applying an international human rights treaty. Deportation should occur in these situations only for the most compelling reasons." (Rec. 28). The government response to this recommendation did not show any commitment to automatic compliance with formal requests from international bodies: "The government agrees that such caution is needed [...] Citizenship and Immigration Canada exercises a great deal of caution in deporting an individual in the face of a formal request not to do so from an international body." (Government response to the Report of the Standing Committee on Citizenship and Immigration, Immigration Detention and Removal). The Canadian Council for Refugees, for its part, commented as follows on the recommendation: "The Committee argues that a removal should occur when it would shock Canadians for the person not to be removed. We on the contrary are shocked that elected representatives of Canada, a country that prides itself on leadership in the promotion of international respect for human rights, should advocate the deliberate flouting of requests by international human rights bodies." (Canadian Council for Refugees, Comments on Immigration Detention and Removals: Report of the Standing Committee on Citizenship and Immigration, June 1998).
Articles 6 and 7
10. Despite the numerous reports of torturers present in Canada (some of them denied refugee status on the basis of the Refugee Convention exclusion provisions), there have been no prosecutions of torturers in Canada. Since no one has been charged, no one has been taken into custody on the basis of charges. The Canadian Council for Refugees is concerned that it is aware of no efforts underway to investigate allegations of torture committed by persons in Canada. The government has stated that its policy is to deport, not prosecute those who have committed crimes against humanity.
11. Immigration officers and guards employed by private security firms are involved in the detention of persons detained under the Immigration Act. Immigration enforcement officers are involved in the arrest and forcible removal from Canada of persons deemed to be inadmissible. Details of the education and information given to these officials are not readily accessible. The Canadian Council for Refugees is concerned that little or no training is provided regarding the prohibition against torture. We note that the Third Report of Canada does not even mention Citizenship and Immigration Canada and immigration detention with respect to its compliance with this article of the Convention.
12. Non-governmental organizations, including the Canadian Council for Refugees, have for many years recommended that the Chairperson of the Immigration and Refugee Board issue guidelines regarding survivors of torture, for the use of members involved in refugee determination. Guidelines would, in our opinion, help to ensure consistent and sensitive respect for the spirit and the letter of the Convention Against Torture. In the spring of 2000, the Immigration and Refugee Board finally accepted the pertinence of guidelines, but stated it did not have the resources for the time being to develop them. In an effort to forward the work, the Canadian Council for Refugees agreed to take the lead in developing a first draft of guidelines.